Bombay High Court Quashes Complaint Against Directors in Cheque Dishonour Case Due to Lack of Vicarious Liability. Directors of Hindustan Lever Limited not liable under Section 138 of Negotiable Instruments Act, 1881 as complaint failed to aver that they were in charge of and responsible for conduct of business at the time of offence.

High Court: Bombay High Court Bench: BOMBAY In Favour of Accused
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Case Note & Summary

The petitioners, who were directors of Hindustan Lever Limited, filed a writ petition seeking quashing of a criminal complaint filed by the respondent, Pawan Gulzarilal Chopra, Director of Skipper Foods Pvt. Ltd., under Section 138 of the Negotiable Instruments Act, 1881. The complaint alleged that a cheque issued by Hindustan Lever Limited was dishonoured. The petitioners contended that the complaint did not contain any specific averment that they were in charge of and responsible for the conduct of the business of the company at the time of the offence, which is essential to attract vicarious liability under Section 141 of the Act. The respondent argued that the directors were liable as they were responsible for the company's affairs. The court examined the complaint and found that it merely named the petitioners as directors without stating their role or responsibility. Relying on precedents, the court held that without specific averments, vicarious liability cannot be imposed. The court quashed the complaint and the order issuing process against the petitioners, exercising its inherent powers under Section 482 of the Code of Criminal Procedure, 1973 to prevent abuse of process.

Headnote

A) Criminal Law - Negotiable Instruments Act - Section 138 - Vicarious Liability of Directors - Complaint lacking specific averment that directors were in charge of and responsible for conduct of business at the time of offence is liable to be quashed - Held that mere mention of directors in complaint without stating their role and responsibility is insufficient to attract vicarious liability (Paras 10-15).

B) Criminal Procedure Code - Section 482 - Inherent Powers - Quashing of Complaint - Where complaint does not disclose essential ingredients of offence, continuation of proceedings amounts to abuse of process of court - Held that High Court can exercise inherent powers to quash such complaint to prevent miscarriage of justice (Paras 16-20).

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Issue of Consideration

Whether the criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 against the directors of a company can be quashed when the complaint does not contain specific averments that the directors were in charge of and responsible for the conduct of the business of the company at the time of the offence.

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Final Decision

The court allowed the writ petition, quashed Complaint Case No. 34/SW/2004 and the order issuing process dated 04.02.2004 and bailable warrants dated 03.09.2004 against the petitioners.

Law Points

  • Vicarious liability of directors under Section 138 of Negotiable Instruments Act
  • 1881 requires specific averment that the director was in charge of and responsible for conduct of business at the time of offence
  • Quashing of criminal proceedings when complaint lacks essential ingredients
  • Section 482 CrPC inherent powers to prevent abuse of process
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Case Details

2019 LawText (BOM) (10) 91

Criminal Writ Petition No. 1954 of 2004

2019-10-10

S. S. Shinde, J

Mr. Sushil A. Inamdar, for Petitioner; Mr. Vinod Chate, APP for Respondent-State

Mr. M.S. Banga, Mr. V. Narayan, Mr. D.S. Parekh, Mr. M.K. Sharma, Hindustan Lever Limited

Mr. Pawan Gulzarilal Chopra, State of Maharashtra

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Nature of Litigation

Criminal writ petition seeking quashing of complaint under Section 138 of Negotiable Instruments Act, 1881 and order issuing process.

Remedy Sought

Petitioners sought quashing of Complaint Case No. 34/SW/2004 and order issuing summons/process dated 04.02.2004 and bailable warrants dated 03.09.2004.

Filing Reason

The complaint was filed by respondent No. 1 alleging dishonour of a cheque issued by Hindustan Lever Limited. The petitioners, being directors, were sought to be made vicariously liable.

Previous Decisions

The Additional Metropolitan Magistrate, 9th Court, Bandra issued process on 04.02.2004 and bailable warrants on 03.09.2004 against the petitioners.

Issues

Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 can be sustained against the directors without specific averment that they were in charge of and responsible for the conduct of business at the time of the offence.

Submissions/Arguments

Petitioners argued that the complaint lacks essential averments to attract vicarious liability under Section 141 of the NI Act, as it merely names them as directors without stating their role. Respondent contended that the directors are liable as they are responsible for the company's affairs.

Ratio Decidendi

For vicarious liability under Section 141 of the Negotiable Instruments Act, 1881, the complaint must contain specific averments that the director was in charge of and responsible for the conduct of the business of the company at the time of the offence. Mere mention of the director's name is insufficient. In the absence of such averments, the complaint is liable to be quashed under Section 482 of the Code of Criminal Procedure, 1973 to prevent abuse of process.

Judgment Excerpts

This writ petition is filed with following substantive prayers:- Respondent No. 1 is original complainant. Gist of the complaint is that, Mr. Pavan Gulzarilal Chopra is the Director Skipper Foods (P) Limited, New Delhi.

Procedural History

The complaint was filed before the Additional Metropolitan Magistrate, 9th Court, Bandra, who issued process on 04.02.2004 and bailable warrants on 03.09.2004. The petitioners then filed Criminal Writ Petition No. 1954 of 2004 before the Bombay High Court seeking quashing of the complaint and the orders.

Acts & Sections

  • Negotiable Instruments Act, 1881: 138, 141
  • Code of Criminal Procedure, 1973: 482
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